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The Nevada Supreme Court building Monday, March 4, 2019. (David Calvert/The Nevada Independent)

In a landmark decision, the Nevada Supreme Court has implemented numerous new procedural hurdles governing use of cash bail for pretrial release in the state’s criminal justice system.

In a 6-1 ruling published Thursday, justices authored a majority opinion that created a new three-tiered process for lower-court judges and prosecutors to follow before requiring a person to pay cash bail in order to be released before trial. It also requires judges to take into consideration a person’s finances before assessing any cash bail as a condition of release.

Although the court did not outright abolish cash bail in the decision — and technically ruled against the plaintiffs, who filed the legal challenge while in pretrial custody and have since pled guilty — it’s likely to significantly reduce the number of people who are required to pay cash bail to be released from confinement before a trial.

“Bail serves the important function of allowing a defendant to be released pending trial while at the same time ensuring that he or she will appear at future proceedings and will not pose a danger to the community,” Justice James Hardesty wrote in the court’s majority opinion. “When bail is set in an amount the defendant cannot afford, however, it deprives the defendant of his or her liberty and all its attendant benefits, despite the fact that he or she has not been convicted and is presumed innocent.”

In the majority opinion, members of the court ruled that bail may only be set when it is “necessary to reasonably ensure the defendant's appearance at court proceedings or to protect the community, including the victim and the victim's family.” In order to meet that standard and assign a cash bail amount to a defendant, prosecutors must go through three newly required procedural steps, including:

  • A “prompt” individualized hearing on custody status, at which the defendant has the right to be represented by an attorney and is also afforded the right to testify or present evidence.
  • A requirement that at the hearing, prosecutors must meet a burden of “clear and convincing evidence that no less restrictive alternative will satisfy its interests in ensuring the defendant's presence and the community's safety.”
  • The district court judge must “make findings of fact and state its reasons for the bail decision on the record.”

District Court judges are ordered by the court to assess several factors before determining whether bail is necessary, including individual circumstances of the defendant (such as character or ties to the community), past criminal history, nature of the potential sentence and crime, and whether and why own recognizance or monitored release would not be sufficient to ensure an appearance at future court dates.

“Where the defendant presents little to no flight risk or danger to the community, release on personal recognizance or nonmonetary conditions will likely be appropriate, in which case bail in any amount would be excessive,” Hardesty wrote in the order. “On the other hand, where the defendant has an extensive history of failing to appear for court proceedings and few ties to the community, bail will likely be necessary.”

Hardesty also wrote in the opinion that District Court judges “must take into consideration the defendant's financial resources” before assessing bail, calling it “essential to determining the amount of bail that will reasonably ensure his or her appearance and the safety of the community.”

The court also struck down as unconstitutional a portion of existing state law requiring a “showing of good cause” before a person is released without bail from pre-trial confinement.

“We agree that this ‘good cause’ requirement to release a person on nonmonetary conditions undermines the constitutional right to nonexcessive bail, as it excuses the court from considering less restrictive conditions before determining that bail is necessary,” Hardesty wrote in the majority opinion. “Furthermore, it effectively relieves the State of its burden of proving that bail is necessary to ensure the defendant's appearance or protect the community.”

Although the original plaintiffs in the case pled guilty last year and are no longer in pretrial custody, members of the court still opted to hear the case and issue a ruling rather than declare the issue moot — because of its public importance, they said.

“Deciding these issues would provide guidance to judges who are responsible for assessing an arrestee's custody status,” Hardesty wrote in the order. “Because the petitions raise legal questions of first impression and statewide importance that are likely to recur in other cases, we choose to consider the issues on the merits.”

Justice Kristina Pickering wrote a concurrence and partial dissent on the case, saying that she agreed with the “importance of prompt and constitutionally conducted pretrial detention and release decisions,” but that the case should be declared moot.

Christy Craig and Nancy Lemke, two attorneys with the Clark County public defender’s office who argued the case, said in an email they are “very pleased with the court’s ruling.”

“The Nevada Supreme Court clearly articulated the process the state must follow for every pretrial detainee,” they wrote in an email.

Nevada Supreme Court bail d... by Riley Snyder on Scribd

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